How do you go about proving wasteful dissipation?

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prosedivorcee

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I believe my rights were violated due to my spouse's failure to preserve the assets in a marital investment account thus breaching his fiduciary duty. Spouse requested a court ordered freeze without warning during the divorce not allowing time to properly protect the account from market fluctuation. The market subsequently collapsed and the assets were gone. Would the court charge back this amount from dissipating spouse's share or split unequally giving the dissipating spouse a smaller percentage?
 
prosedivorcee said:
I believe my rights were violated due to my spouse's failure to preserve the assets in a marital investment account thus breaching his fiduciary duty. Spouse requested a court ordered freeze without warning during the divorce not allowing time to properly protect the account from market fluctuation. The market subsequently collapsed and the assets were gone. Would the court charge back this amount from dissipating spouse's share or split unequally giving the dissipating spouse a smaller percentage?
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No. Absent a finding of fraud, everyone knows investments are nothing more than gambling.
Investments are speculative, not a sure bet, nevertheless a bet they are.
 
Your opinion might change if I give you a few more details. This investment account was managed daily by the defendant because the nature of the investments were options. This was testified to in court. It was protected from loss as the defendant could convert the options to cash on any day. It only became at risk of loss when the Defendant was ordered to stop protecting it through the freeze. Plaintiff ordered the freeze because of spite. That is why I feel plaintiff failed to preserve the assets and in so doing is a fraud on the marriage.
 
prosedivorcee said:
Your opinion might change if I give you a few more details. This investment account was managed daily by the defendant because the nature of the investments were options. This was testified to in court. It was protected from loss as the defendant could convert the options to cash on any day. It only became at risk of loss when the Defendant was ordered to stop protecting it through the freeze. Plaintiff ordered the freeze because of spite. That is why I feel plaintiff failed to preserve the assets and in so doing is a fraud on the marriage.
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You, no doubt, do believe all you have said.

Nevertheless, you have stated no legal precedent or laws that prohibit what you describe as "fraud".

Bottom line, my opinion is irrelevant.

The presiding judge in your matter before the bar, is the one you must convince.

The plaintiff only requested the order that froze the account, and the judge issued the order.

The plaintiff and defendant are equal before the bar.

They present their respective cases and the judge decides or rules.
 
If it is not fraud, I believe at least it would be wasteful dissipation of marital assets .... reducing or destroying the value of a marital asset.
and/or an encumbrance (court ordered freeze) made without fair consideration...

DRL section 236 B:
5. Disposition of property in certain matrimonial actions.
c. Marital property shall be distributed equitably between the parties, considering the circumstances of the case and of the respective parties.
d. In determining an equitable disposition of property under paragraph c, the court shall consider:
(12) the wasteful dissipation of assets by either spouse;
(13) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;

[The trial court's] findings suggest that it was Husband's careless handling of the funds that caused their disappearance and that the trial court regarded Husband's conduct as relevant in considering the equities between the parties. Husband's careless handling of the funds could be characterized as a failure to preserve a marital asset under Tennessee Code Annotated section 36-4-121(c)(5). See Black's Law Dictionary 1184-85 (6th ed. 1990) (defining "preservation" as "[k]eeping safe from harm; avoiding injury, destruction, or decay; maintenance . . . not the creation, but the saving of that which already exists, and implies the continuance of what previously existed"); see also Barker v. Barker, 66 Ark. App. 187, 992 S.W.2d 136, 138 (1999) (explaining that the trial court's division of the proceeds from the sale of the marital home was based on the Husband's failure to preserve marital assets by wasting the parties' savings). In the alternative, since Husband's careless handling of the funds affected the equities between the parties, such handling could be regarded as a necessary factor in considering those equities [under Tennessee's catch-all equitable distribution factor]. See Tenn. Code Ann. 36-4-121(c)(11) (2001).

Several fact patterns seem to be recurring on the facts of the cases. Negligent failure to place an asset in a safe place was at issue not only in Flannary, but also in In re Marriage of Walls, 278 Mont. 413, 925 P.2d 483 (1996), in which the wife claimed that $30,000 in marital cash and jewelry had been stolen from her car. The court suspected that the wife took or wasted the assets at issue, but held that dissipation would still result even if a third party were responsible, since the wife was negligent in leaving property of such value unattended in her car. Of course, intentional dissipation can be found in this situation if the court finds on the facts that the guilty spouse actually took the asset. Still, reliance upon negligent dissipation in these cases allows the court to avoid the difficult factual issue of whether the asset was taken by the dissipating spouse or by a third party.The most common fact pattern involving negligent dissipation is the failure to maintain a marital asset during the pendency of the divorce case. Lack of maintenance is clearly not intentional dissipation, as there is no express proof in these cases that the nonmaintaining spouse was acting for the purpose of harming the other spouse. Nevertheless, the cases all hold that the failure to maintain an asset, even if only negligent, is a factor to consider in dividing the marital property. See Hansen v. Hansen, 207 A.D.2d 824, 616 N.Y.S.2d 637 (1994) (husband sold marital apartment building at a loss after negligently allowing it to fall into disrepair); Grossnickle v. Grossnickle, 935 S.W.2d 830 (Tex. App. 1996) (holding wife responsible for loss of value of home in her care; wife had neglected home, and her neglect had led to damage by vandalism); Mir v. Mir, 39 Va. App. 119, 571 S.E.2d 299 (2002) (husband failed to take proper care of home, and made improvements which ultimately reduced its value; proper to award wife 95% of marital equity).

Looking forward to your opinion:)
 
No family court judge, and certainly no referee or mediator, would ever look to legal precedents.
You are making things too complicated.
What value would you place on the entire marital estate?
If we're not looking at seven figures (or more), abandon this strategy.
And, if it equals or exceeds seven figures, hire a lawyer.
You're doing yourself a great injustice.
 
Entire estate is about $3m. The case is currently in Supreme Court. After that it will go to the Appellate Court and if necessary the Court of Appeals. Of course I will have an attorney. I am doing some of my own leg work to cut down attorney costs. If the judge does not look at legal precedents, case law and statutes, then what do they look for?
 
Get an attorney.

Seriously. You don't want a message board and you obviously can't handle this yourself.
 
So he requested the account be frozen, removing him from the responsibility of actively buying and selling. Had he continued actively buying and selling, you would be here trying to find out how to get 1/2 of the profit and if he had made bad trades, to make him pay for all losses. It was an investment account and was invested. Your investments lost money, just as the investments of many have. Sorry bout yer luck.
 
No, he requested the account be frozen, stopping me from buying and selling, not him. If that did not happen and/or I had warning that the account would be frozen I would have been able to move the open positions to cash, protecting the account from exposure. I managed it daily. How could I protect it if it is frozen?
 
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